A Study On Forced Heirship System Of Inheritance Law In China

The system of special retention emerged in the ancient Roman period,and it has been developed and perfected for thousands of years.As a way to restrict the freedom of wills,the system of retention has been accepted and adopted by many countries in the world.However,China has not carried out the system of special retention in the real sense.The current system of mandatory retention has become more and more negative in the development of our country's modern social and economic relations,and the system of compulsory retention has been out of fashion and has many defects.It cannot be fully adapted to the social development in our country.The Inheritance Act came into effect in 1985.China's economic development and national demand are still at a low level.Although it has reflected the purpose of restricting the freedom of wills,the current system of testamentary succession has gradually shown its drawbacks under the tide of the times.It has been difficult to adapt to the new needs of social development.At the same time,the establishment and revision of the relevant system have seen a new dawn and opportunity at the time of the legislation of succession and compilation of the Civil Code.Although the freedom of wills is a universal principle established by the inheritance laws of modern countries,as with any freedom,the freedom of wills is not unlimited.The Inheritance Law implements the principle of the combination of personal interests with social interests.On the one hand,it recognizes the freedom of wills,on the other hand,it also restricts the validity of wills.Article 19 of The Law on Inheritance provides that the will shall retain the necessary share of the estate in respect of heirs who are incompetent to work and who do not have a source of livelihood.Article 37 of the opinion on Inheritance Law states that the testator does not retain the share of the estate of the heir who is incapable of working and does not have a source of livelihood.When the estate is disposed,it shall leave the necessary estate for the heir,the remainder of which can only be dealt with by reference to the distribution principle established by the will.This is the system of "must stay" in the current inheritance law of our country.It is of great significance to restrict the testator's freedom of will and to protect the lawful rights and interests of the heirs who lack the ability to work and have no source of livelihood,but it also has obvious limitations.First of all,the scope of the "must retain" is too narrow;secondly,"must stay" on the "necessary share of the heritage" lack of clarity,and the practice is not easy to operate.In the inheritance system of restricting the freedom of wills and protecting the rights and interests of certain heirs,the system of "special share" is the current legislation of succession law of all countries in the world.France,Germany,Japan and other civil law countries,have stipulated that property owners dispose of their own property cannot violate the law on "special shares" provisions.Compared with the existing "must retain" system in our country,the special retention system plays an important role in the inheritance legal system.The successful experience of other countries has also provided strong evidence and motive force for our country to carry out the special retention system.At the same time,a thorough and scientific understanding of the special retention system and regulations of other countries is also beneficial to our country in the process of constructing the special retention system.Better reference and learning to promote the construction and implementation of a more scientific and complete retention system in China.